Daily Comment on News and Issues of Interest to Michigan Lawyers

February 2013

02/25/2013

The U.S. Supreme Court granted cert today in a Michigan case, Burt v. Titlow (12-414), that may clarify the scope of another criminal case from Michigan,Lafler v. Cooper, decided last year. From SCOTUSBlog:

The Burt case involves a Troy, Michigan, woman, Vonlee
Nicole Titlow, who was convicted of second-degree murder for the
suffocation of her uncle, Donald Rogers, in August 2000. While she was
being held in jail after she had pleaded guilty under a plea bargain,
but before she was sentenced, a sheriff’s deputy told her she should not
have pleaded guilty if she believed she was innocent.

Titlow got a new attorney and claimed innocence, and the lawyer told
her to withdraw her guilty plea, thus nullifying the plea bargain. She
was facing a sentence of seven to fifteen years on a manslaughter
charge, and the attorney said that was too long. Titlow was then tried
on the more serious charge of murder, and was convicted of second-degree
murder. She was then sentenced to twenty to forty years in prison.

The Sixth Circuit Court ruled that her Sixth Amendment right had been
violated by the attorney’s advice to withdraw the guilty plea, an
action which led to her receiving the longer prison sentence for
murder. That is the issue that state officials challenged in their
petition to the Supreme Court. The key issue is the proof that must be
offered to show that the accused would have accepted the offer if the
advice from the defense lawyer had not been faulty.

Forty years on one might think that there would not be any juicy revelations left about the big events of Watergate history. And one might be wrong. According to the Associated Press, Robert Bork's posthumous memoir, Saving Justice, to be released March 12, says that President Richard Nixon promised then-Solicitor General Bork the next available Supreme Court seat the night
Bork executed the President's order to fire Special Prosecutor Archibald Cox. Previously that day, October 20, 1973, Attorney General Eliot Richardson and deputy William
Ruckelshaus had resigned rather than carry out the order. The value of the Presidential promise was questionable:

Bork writes that he didn't know if Nixon
actually, though mistakenly, believed he still had the political clout
to get someone confirmed to the Supreme Court or was just trying to
secure Bork's continued loyalty as his administration crumbled in the
Watergate scandal.

Bork's failed Supreme Court nomination by Ronald Reagan in 1987 has come to define Bork's place in history, but his role in the so-called Saturday Night Massacre comes in a strong second. Bork writes that the sequence of resignations and firings that Saturday would more appropriately have been called the "Saturday Night Involuntary Manslaughter," because Nixon blundered through the day's events.

The Freedom from Religion Foundation persistently opposes the city of Warren's display of a nativity scene in the city's civic center during the Hanukkah-Christmas season. They asked Mayor Fouts to remove the nativity scene and when that didn't work, in 2011, they instead asked the City to add a sandwich board sign with this message:

At this season of

THE WINTER SOLSTICE

may reason prevail.

There are no gods,

no devils, no angels,

No heaven or hell.

There is only our natural world,

Religion is but

Myth and superstition

That hardens hearts

And enslaves minds.

Mayor Fouts refused and his response to the Foundation, quoted in today's opinion (PDF) by Judges Sutton, Siler, and
McKeague rejecting the Foundation's claim to a right to the display beside the nativity scene, alone is worth reading the opinion, which competes with the Fouts letter for entertaining style. From the opinion's conclusion:

To the extent the Foundation means to claim that the City’s government speech commemorating the holiday disparately treats its preferred message, the answer is: welcome to the crowd. Not everyone, we suspect, is happy with the City’s holiday display from one year to the next. And the Foundation, like everyone else, is free to urge the City to add or removesymbols from the display each year or to try to elect new officials to run the City—the customary answer to permissible government speech and the customary answer to policies with which citizens disagree. Were we to grant the Foundation’s request to add the Winter Solstice sign, moreover, that would place it in a preferred position, as no other part of the existing display contains a Madison-Avenue-like written advertisement, website included, for its stance on the holidays.

The most obvious immediate impact will be on the state's legal aid offices. Sequestration will cause a 5% annual across the board cut to the Legal Services Corporation, resulting in a $16.3 million cut in grants to legal aid providers nationally. The cuts will affect payments beginning in April, according to the president of the Legal Services Corporation. Since LSC is already into its current budget
year, the monthly checks will be reduced 7.4%, not 5%.

Over the weekend the Obama Administration released a state by state description of possible sequester consequences. The items with the most obvious immediate impact on the provision of legal services are highlighted:

Speaking of law school debt, at the bottom of the pile of law school debt there often lies another pile of debt, from undergraduate loans. We missed "Tuition Cost Control: Low-Hanging Fruit" by the New Republic's Timothy Noah when it came out last May, but given the Ohio State angle we thought Michigan and Michigan State readers would especially appreciate it.

This is not a headline we expect to be able to repeat. The departure memo of Skadden Arps partner Garrett Waltzer, who announced that he was leaving the practice of law to support the career of his wife, R&B singer TaQuita Thorns, hit the top of blawg charts last week:

I do not plan to practice law. Instead, I have been blessed with the incredible good fortune of being married to TaQuita Thorns, a talented singer from Detroit, Michigan who is just beginning her career in the music business. In addition to writing and recording outstanding R&B, Rock & Soul songs, TaQuita is an energetic performer with a dazzling voice and stunning looks. I am very excited about TaQuita’s prospects. Going forward, I plan to be a supportive husband and do all I can to help TaQuita achieve her mission to improve the world through music and, in the process, become a force in the music industry.

Litigation against law schools in Michigan, New York, Illinois, and California challenging employment data for recent grads as fraudulent has generally not been going well for the plaintiffs, although several appeals of dismissals are still pending. Perhaps that's what prompts a University of Missouri law professor to contemplate another type of challenge -- ethics complaints based on model rule 8.4 against lawyers at the law schools who are tied to the issuance of fraudulent data. Prof. Ben Trachtenberg says the easiest case is intentionally false data about the LSAT and GPA's of admitted students, but he believes that misleading employment data could also be the basis of an ethics complaint now that problems with the data are better known.

Trachtenberg has authored an article on the subject in the June 2013 Nebraska Law Review (draft available here). He told Bloomberg Law:

Almost every day when I get up I have to wonder: Is today the day I'm going to break down and file a complaint?

02/22/2013

And why not? I'll go first: Conflicts of Law (too ignorant about its importance); Federal Jurisdiction (ditto); Negotiation (Intimidated by the reputation of the professor); Blood Feuds (scheduling never worked, and/or, not yet sufficiently rebellious). What prompts this question is an article about a "concierge" service offered to students at the University of Nevada at Reno, "Need That Class, Desperately? The Course Concierge Will See You Now." What a splendid idea, as is (although the professors hate it) the "reading week" at the university my daughter attended, which allows students to sample courses before committing. What strikes me as powerfully strange in hindsight is how cavalier students have historically been in the choice of classes, and how nonchalant counseling on courses is, given what a big expenditure each course hour represents.

Michigan is not alone in having a short-handed Supreme Court. AP is reporting that the trial of Justice Joan Orie Melvin and her sister Janine Orie has ended in the conviction of both on charges of criminal corruption. The Pittsburgh Post-Gazette story is here. Another sister, lawyer and former state senator Jane Orie, was previously convicted on similar charges and is serving a two-and-a-half to ten year prison sentence. A separate Post-Gazette story says that Justice Orie was suspended from the bench last May when the charges were filed against her. In August, the state's Court of Judicial Discipline approved a recommendation by the Judicial Conduct Board that the suspension be without pay. Now there will be a trial before the Court of Judicial Discipline to determine if Justice Orie Melvin violated the rules of professional conduct or the state Constitution or brought the judiciary into disrepute. Justice Orie Melvin could also be impeached by the state Legislature.

Once a vacancy officially occurs, the governor has 90 days to appoint a replacement. The Pennsylvania Supreme Court is now split both by party and ideology, 3-3. Justice Orie comes from a well-known Pennsylvania Republican political family. Pennsylvania's Governor, Thomas Corbett, is a Republican. Meanwhile, says the Post-Gazette, "legal advocates are using the verdict to once again push for a change in Pennsylvania's system for electing judges."

02/21/2013

The law school debt problem is not new. Clarence Thomas recently told students at Harvard Law School, "I wound up on the Court 17 years after I graduated. And I made my final payment on my student loan my third term on the Court." Granted that 1) Thomas went to a pricey law school (Yale), 2) got elevated to the Court at a relatively young age (43); and 3) didn't have much (as in any) family wealth as a cushion. Still, the idea that a United States Supreme Court justice would be paying off college loans is pretty bracing. And that was twenty years ago.

If you're looking for a picture of what's happened with law school tuition since then, Brian Leichter offers this:

At the same time, the landscape for paying off law school loans has also been changing -- projections on employment and income in the legal market are less optimistic than they were 20 years ago, and repayment conditions are in flux. See this quick description of a new income-based repayment option, and a warning that even that may change.